Neurvana Medical, LLC v. Balt USA, LLC

Opinion

COURT OF CHANCERY OF THE STATE OF DELAWARE KATHALEEN ST. JUDE MCCORMICK LEONARD L. WILLIAMS JUSTICE CENTER VICE CHANCELLOR 500 N. KING STREET, SUITE 11400 WILMINGTON, DELAWARE 19801-3734

October 10, 2019

Jason A. Cincilla, Esquire Lori W. Will, Esquire Amaryah K. Bocchino, Esquire Daniyal M. Iqbal, Esquire Ryan W. Browning, Esquire Jeremy W. Gagas, Esquire Tye C. Bell, Esquire Wilson Sonsini Goodrich & Rosati, P.C. Manning Gross + Massenburg LLP 222 Delaware Avenue, Suite 800 1007 N. Orange Street, 10th Floor Wilmington, DE 19801 Wilmington, DE 19801

Re: Neurvana Medical, LLC v. Balt USA, LLC, C.A. No. 2019-0034-KSJM

Dear Counsel:

Plaintiff has moved for reargument under Court of Chancery Rule 59(f)

concerning this Court’s September 18, 2019 Memorandum Opinion (the “Opinion”),

which dismissed Balt International, S.A.S. from this action for lack of personal

jurisdiction. 1 Specifically, Plaintiff argues that this Court “erred in not considering

Plaintiff’s request for jurisdictional discovery.” 2 For the reasons that follow,

Plaintiff’s motion for reargument is DENIED.

1 C.A. No. 2019-0034-KSJM, Docket (“Dkt.”) 46, Pl. Neurvana Medical, LLC’s Mot. for Reargument (“Pl.’s Mot.”); see Neurvana Med., LLC v. Balt USA, LLC, 2019 WL 4464268 (Del. Ch. Sept. 18, 2019). 2 Pl.’s Mot. ¶ 6. Civil Action No. 2019-0034-KSJM October 10, 2019 Page 2 of 5

“The Court will deny a motion for reargument ‘unless the Court has

overlooked a decision or principle of law that would have a controlling effect or the

Court has misapprehended the law or the facts so that the outcome of the decision

would be affected.’” 3 “Rule 59 relief is available to prevent injustice and will be

granted only when the moving party demonstrates that the court’s decision ‘rested

on a misunderstanding of a material fact or a misapplication of law.’” 4 If a motion

for reargument “merely rehashes arguments already made by the parties and

considered by the Court” in rendering the decision for which reargument is sought,

the motion must be denied.5 It is appropriate to deny a motion for reargument where

the explicit language in the Court’s challenged decision implicitly rejects an

argument offered or request made by the movant. 6 On a motion for reargument, the

movant bears a heavy burden. 7

3 Nguyen v. View, Inc., 2017 WL 3169051, at *2 (Del. Ch. July 26, 2017) (quoting Stein v. Orloff, 1985 WL 21136, at *2 (Del. Ch. Sept. 26, 1985)). 4 In re ML/EQ Real Estate P’ship Litig., 2000 WL 364188, at *1 (Mar. 22, 2000) (quoting Arnold v. Soc’y for Savs. Bancorp, C.A. No. 12883, at 1 (Del. Ch. June 30, 1995)). 5 Wong v. USES Hldg. Corp., 2016 WL 1436594, at *1 (Del. Ch. Apr. 5, 2016). 6 See, e.g., IAC Search, LLC v. Conversant, LLC, 2017 WL 3500244, at *1 (Del. Ch. Jan. 13, 2017) (denying reargument and stating, as to one of the movant’s contentions, that “[t]his argument was rejected in the Opinion, albeit implicitly”). 7 ML/EQ Real Estate, 2000 WL 364188, at *1.

2 Civil Action No. 2019-0034-KSJM October 10, 2019 Page 3 of 5

Plaintiff argues that this Court “erred in not considering Plaintiff’s request for

jurisdictional discovery.” 8 Plaintiff asserts that “[g]ranting jurisdictional discovery

is appropriate when a plaintiff provides non-frivolous grounds for jurisdiction”9 and

that the Complaint in this case “pleaded many facts that provide a plausible basis for

jurisdictional discovery.” 10

Plaintiff’s motion fails primarily because the Opinion did not overlook or

misapprehend anything. Rather, the Opinion implicitly considered and denied

Plaintiff’s request for jurisdictional discovery. “Before ordering personal

jurisdiction discovery there must be at least ‘some indication that this particular

defendant is amenable to suit in this forum.’” 11 There is no such indication here.

Plaintiff failed to allege a non-frivolous basis for jurisdiction under the “closely-

related” test for the reasons set forth in the Opinion. 12 In rejecting Plaintiff’s legal

theory under the closely-related test, the Opinion noted that Plaintiff had failed to

8 Pl.’s Mot. ¶ 6. 9 Id. ¶ 4. 10 Id. ¶ 5. 11 In re Am. Int’l Gp., Inc., 965 A.2d 763, 831 n.195 (Del. Ch. 2009) (quoting Hansen v. Neumueller GbmH, 163 F.R.D. 471, 475 (D. Del. 1995)). 12 Neurvana Med., 2019 WL 4464268, at *4.

3 Civil Action No. 2019-0034-KSJM October 10, 2019 Page 4 of 5

allege facts supporting jurisdiction under that theory. 13 Plaintiff’s agency

jurisdiction argument, too, failed to supply a non-frivolous basis for asserting

jurisdiction. As this Court explained, the agency theory of jurisdiction involves “a

factual inquiry” into three established elements. 14 Plaintiff failed to allege facts

touching on any one—let alone all—of these elements. As this Court noted, Plaintiff

altogether “fail[ed] to identify any sort of meaningful nexus between [Balt USA and

Balt International].” 15 Given the dearth of factual allegations, Plaintiff is not

permitted to use jurisdictional discovery to “fish for a possible basis for this court’s

jurisdiction.” 16

Further, the decision to grant jurisdictional discovery is discretionary. 17 “The

trial court is vested with a certain discretion in shaping the procedure by which a

13 Id. at *8 (explaining that “Plaintiff would fail to meet its burden” even if the Court were willing to apply the active-involvement theory of foreseeability). 14 Id. (“The agency theory of jurisdiction involves a factual inquiry requiring the court to determine whether: ‘(1) the agent ha[s] the power to act on behalf of the principal with respect to third parties; (2) the agent do[es] something at the behest of the principal and for his benefit; and (3) the principal ha[s] the right to control the conduct of the agent.’” (quoting EBG Hldgs. LLC v. Vredezicht's Gravenhage 109 B.V., 2008 WL 4057745, at *10 (Del. Ch. Sept. 2, 2008))). 15 Id. at *9. 16 In re Am. Int’l Gp., 965 A.2d at 831 n.195 (quoting Hansen, 163 F.R.D. at 475). 17 Pl.’s Mot. ¶ 2 (“[W]here a court finds that jurisdictional allegations are insufficient, the trial court may allow jurisdictional discovery . . . .”); id. ¶ 4 (“[W]hen a defendant moves to dismiss due to lack of personal jurisdiction and the alleged facts are insufficient to meet the required burden, ‘the trial court may permit’ the plaintiff jurisdictional discovery so 4 Civil Action No. 2019-0034-KSJM October 10, 2019 Page 5 of 5

motion under Rule 12(b)(2) is resolved.”18 And, “[w]hen the decision that is the

subject of reargument rests on the court’s exercise of its discretion . . . ‘no fact or

legal precedent may “compel” a different result absent a showing of abuse of

discretion.’” 19 Plaintiff’s motion for reargument is effectively a collateral attack on

the Court’s exercise of that discretion, which is an inappropriate basis for

reargument.

For the foregoing reasons, Plaintiff’s motion for reargument is DENIED.

Very truly yours,

/s/ Kathaleen St. Jude McCormick

Kathaleen St. Jude McCormick Vice Chancellor

KSJM/lef

cc: All counsel of record (via File & ServeXpress)

long as plaintiff’s claim of jurisdiction is not frivolous.” (emphasis added) (quoting Am. Scheduling, Inc. v. Radiant Sys., Inc., 2005 WL 736889, at *1 (Del. Ch. Feb. 9, 2005))). 18 Benerofe v. Cha, 1996 WL 535405, at *3 (Del. Ch. Sept. 12, 1996) (citing Hart Hldg. Co. v. Drexel Burnham Lambert Inc., 593 A.2d 535, 538 (Del. Ch. 1991)). 19 Quantlab Gp. GP, LLC v. Eames, 2018 WL 5778445, at *1 (Del. Ch. Nov. 2, 2018).